The Gazette 1946-49

claim for an increase in duty in respect of such increased value. In 1944, the Society took the matter up with the Controller of Death Duties in connection with a case in which a claim for additional duty was made upon executors some years after they had distributed the estate, notwithstanding that a certificate in the form mentioned above had already been issued. The Council took the opinion of Senior Counsel who advised that Section XI (i) does not impose any obligation on the Revenue Commissioners to issue a certificate of discharge as it merely states that the Commissioners on being satisfied that full duty has been paid shall issue the certificate. Furthermore, this certificate is limited to estate duty and does not cover legacy or succession duty. He also advised that Section XI (i) merely discharges the property and does not release the party account able from his personal liability. Section XI (2) discharges the property and the person accountable, but here again the discharge is limited to estate duty. Certificate No 149, which is issued by the Revenue Commissioners to the effect that there is no out standing charge for death duties (including legacy and succession duties), does not appear to be issued in pursuance of Section XI of the Finance Act, 1894, and is in fact a non-statutory certificate. It is doubtful whether the Revenue Commissioners have ever issued a statutory certificate in accordance with Section XI. The effect of the qualifying clauses which appear in the non-statutory certificate No. 149, is that an executor may not be safe in dis tributing an estate, without setting aside a fund to provide for the possibility of outstanding death duties, until a period of six years has elapsed from the date of death, having regard to the danger that additional facts may come to light at a subsequent date, which were unknown to him when he distributed the estate, which may give rise to a further claim for duty for which he will be personally liable. The following statement in regard to the present Certificate No. 149, appears at page 28 of the late Mr. Glover's Treatise on the Registration of Ownership of land in Ireland :—

In February, 1944, the Council suggested to the Revenue Commissioners that the two qualifying • clauses mentioned above should be omitted in future from certificate No. 149, and that where an application is made for a certificate the Revenue Commissioners should decide once and for all what value they will accept in respect of the property and issue an unqualified certificate on that basis. They also suggested that as Section XI of the Finance Act, 1894, is limited in its application, and as the present certificate No. 149 does not appear to be a statutory certificate it would be advisable to seek statutory authority for the issuing in proper cases of a certificate which would relate to all death duties and would discharge both the property and the personal representatives or other accounting parties from liability for such duties. On February i8th, 1944, Mr. Casey, the Controller of Death Duties, wrote to the Society referring to Section 14 of the Customs and Inland Revenue Act, 1889, which has application both to estate duty and legacy and succession duties, and which has the effect of exonerating from liability for duty, after the expiration of six years from the date of the furnishing of a full and true account of the property, an executor or other party accountable for such duty. Mr. Casey considered that this section by analogy justifies the practice of the Revenue Commissioners in inserting the six years' qualifying clause in the certificate of discharge, No. 149. This argument, however, seems to be begging the question as it is precisely in cases which do not come within the scope of Section 14 of the Customs and Inland Revenue Act, 1889, that the executor requires a certificate of discharge. If the executor could afford to wait for six years before distributing the estate he might not require a certificate to discharge him from his personal liability, but, as is universally known, an executor who waited so long before distributing the estate would be subject to continual pressure from the beneficiaries, and such delay would in fact be unreasonable in most cases. Mr. Casey further pointed out that under Section XI (3) it is open to any party accountable to request the Commissioners to determine the value of the property for the purpose of death duties, and that once the value has been determined by the Valuation Commissioners or fixed on an appeal to the Court from such determination, it becomes final and binding on both the taxpayer and the State. In such cases the six years' qualifying clause is omitted from Certificate No. 149, but the limitation of the discharge to the facts disclosed by application for the certificate remains. It is only in cases where the Valuation Office raise no question on the value of the

" The form of the certificate issued by the Commissioners to the effect that on the facts disclosed to them they have no claim for duty, is not a certificate that complies with Section XI of the Finance Act; and having regard to the express terms of sub-section 3 of that section it is difficult to understand why or on what grounds the certificate is issued. Such a certificate at any rate does not justify an entry in the Registry of exemption from duty." 61